Virtual Law Campus (VLC)

Pages

Monday, August 29, 2016

Healthcare can be significantly improved
with the use of information and communication technology (ICT). Examples
of combination of healthcare with ICT are e-health, m-health,
telemedicine, online pharmacies, etc. However, with the use of ICT there
are certain techno legal issues that have to be managed by various
stakeholders especially the Indian Government.

As a matter of fact it is absolutely essential to formulate e-health laws in general and Digital India Laws
in particular. Similarly, actual implementation of proposed or declared
projects and policies is more important as otherwise polices and
projects remain mere declarations. For instance, a proposal to
constitute an e-health authority of India was mooted in June 2014. However, till August 2016 there is no sign of such an authority.

It is only now that the Union health
ministry recently conducted a National Consultation on NeHA under the
chairmanship of secretary, ministry of health, to give a final shape to
the e-health authority. Obviously, it would take some more time, may be
years, for the NeHA to be finally operational. Even then it is not clear
whether the Indian Government would be able to provide a techno legal
framework for NeHA with adequate procedural safeguards as till now that is missing from all its projects, including the Digital India. Perry4Law Organisation (P4LO) strongly recommends that such a techno legal framework must be formulated by Indian Government as soon as possible.

The Ministry of Health and Family Welfare has released a concept note discussing establishment of the National eHealth Authority (NeHA) for India
in the past. According to the note, NeHA will be the nodal authority
that will be responsible for development of an Integrated Health
Information System (including Telemedicine and mHealth) in India, while
collaborating with all the stakeholders, viz., healthcare providers,
consumers, healthcare technology industries, and policymakers. It will
also be responsible for enforcing the laws and regulations relating to
the privacy and security of the patients health information and records.

Healthcare laws and regulatory compliances are long overdue in India. For instance, telemedicine and online pharmacies related regulatory issues are ignored by the e-health and m-healthy entrepreneurs in India. Websites selling medicines online are openly flouting the laws of India. Mobile application developers
in India are also required to comply with privacy, data protection and
cyber law requirements. These regulatory compliances are not adhered to
by healthcare industry and entrepreneurs of India.

Similarly, healthcare cyber security issues in India are still not priority area for businesses and entrepreneurs. Healthcare industry is facing diverse range of cyber attacks
these days. The prominent among them is ransomware that encrypts the
sensitive healthcare information and decrypts the same only once the
ransom is paid. So much is the nuisance these days that the National
Institute of Standards and Technology (NIST) has released a guide for IT
developers on integrating security measures into the development
process, which could influence healthcare cyber security management.

Recently the cabinet approved the draft national IPR policy of India.
This would facilitate intellectual property creation in favour of
e-health and m-health entrepreneurs in India. This would also ensure
that IPRs of others are not violated by the e-health and m-health
entrepreneurs of India

Indian government has started ambitious initiatives like Digital India and Internet of Things (pdf) that intend to bridge the digital divide in India on the one hand and enabling e-delivery of services in India
on the other. There are many segments of Digital India projects and
e-health is one of them. E-health initiatives of India government aim at
providing timely, effective and economical healthcare services to
Indian population. E-health is particularly relevant for masses that
have little access to healthcare services in India.

While the objectives of Digital India are
laudable and deserve full support yet we at Perry4Law Organisation
(P4LO) also believe that the shortcomings of Digital India
project of India cannot be ignored or bypassed by Indian government.
Similarly insisting upon Aadhaar number for healthcare services in India
would be a terrible idea especially when Aadhaar is not mandatory for government services in India.

As per the concept note, NeHA would be responsible:

(a) To guide the adoption of e-Health
solutions at various levels and areas in the country in a manner that
meaningful aggregation of health and governance data and
storage/exchange of electronic health records happens at various levels
in a cost-effective manner,

(b) To facilitate integration of multiple health IT systems through health information exchanges,

(c) To oversee orderly evolution of
state-wide and nationwide Electronic Health Record Store/Exchange System
that ensures that security, confidentiality and privacy of patient data
is maintained and continuity of care is ensured.

In the light of the above, NeHA has been envisaged to support:

(a) Formulation of policies, strategies
and implementation plan blueprint (National eHealth Policy / Strategy)
for coordinated eHealth adoption in the country by all players;
regulation and accelerated adoption of e-health in the country by public
and private care providers and other players in the ecosystem; to
establish a network of different institutions to promote eHealth and
Tele-medicine/remote healthcare/virtual healthcare and such other
measures;

(b) Formulation and management of all
health informatics standards for India; Laying down data management,
privacy & security policies, standards and guidelines in accordance
with statutory provisions; and

(c) To promote setting up of state health records repositories and health information exchanges (HIEs);

(d) To deal with privacy and confidentiality aspects of Electronic Health Records (EHR).

Functions of National eHealth Authority

(1) Core Functions

(a) Policy and Promotion

(i) Working out vision, strategy and
adoption plans, with timeframes, priorities and road-map in respect of
eHealth adoption by all stakeholders, both Public and Private providers,
formulate policies for eHealth adoption that are best suited to Indian
context and enable accelerated health outcomes in terms of access,
affordability, quality and reduction in disease mortality &
morbidity

(ii) To engage with stakeholders through
various means so that eHealth plans are adopted and other policy,
regulatory and legal provisions are implemented by both the public and
private sector stakeholders.

(iii) It shall provide thought leadership, in the areas of eHealth and mHealth.

(b) Standards Development

(i) Government of India, MoHFW has
published EMR/EHR standards for India in 2013. Similarly, MoHFW has
become a member of IHTSDO with a view of widespread adoption of
SNOMED-CT in India; MoHFW has also nominated C-DAC (Pune) as interim NRC
(iNRC). As such, initial focus of NeHA would be on addressing
implementation issues and promoting mechanisms in support of the same.

(ii) Concurrently, NeHA will be nurtured
to undertake the role of a standards development, maintenance and
support agency in the area of Health Informatics

(c) Legal Aspects including Regulation

(i) NeHA will be setup through an
appropriate legislation (Act of Parliament). It is also proposed to
address the issues relating to privacy and confidentiality of Patients’
EHR in the legislation. NeHA may act as an enforcement agency with
suitable mandate and powers.

(ii) NeHA will be responsible for
enforcement of standards and ensuring security, confidentiality and
privacy of patient’s health information and records.

NeHA, while avoiding the implementation
role by itself, will prepare documents relating to architecture,
standards, policies and guidelines for e-Health stores, HIEs and NHIN;
it may also initiate or encourage PoCs, in close consultation with
government – centre and states, industry, implementers and users. Later,
it would lay down operational guidelines and protocols, policies for
sharing and exchange of data, audit guidelines and the like; these shall
be guided by experience in operation and use of PoC, global best
practices and consultations with stakeholders (MoHFW, State governments
and other public and private providers, academia, R&D labs, and
others).

(e) Capacity Building

Spreading awareness on Health Informatics
/ eHealth to healthcare delivery professionals through various
educational initiatives and flexible courses according to the background
of the learners will form a component of NeHA activities, as it is seen
as critical to acceleration of adoption of eHealth.

(f) Other functions may be assigned to NeHA as the situation warrants.

Health being a state subject in India and
much depends on the ability /regulatory framework enacted by the State
governments, NeHA shall be created through legislation (Act of
Parliament) that empowers it to take leadership and strategic role for
setting directions for public and private eHealth initiatives, including
electronic health records storage and health information exchange
capabilities and other related health information technology efforts and
regulation of the same.

NeHA shall ensure ongoing interagency
cooperation – while engaging with various stakeholders through the
Standing Consultative Committee and also through other means, in a
structured, open and transparent manner to support successful evolution
of national integrated health information system. We at Perry4Law Organisation (P4LO) welcome this initiative of Indian government and wish all the best to it in this regard.

Thursday, June 16, 2016

Healthcare related laws of India are very old and they have not kept
pace with the contemporary requirements. In an online world,
traditional laws are more hindered than solution. This is the
reason why we need to amend or even repeal the same and substitute
them with appropriate techno legal laws. In one such initiative the
Central Drugs Standards Control Organisation (CDSCO) is working
towards drafting a new Drugs and Cosmetics Act, 2016 and a Medical
Devices Act, 2016.

Medicines and medical
devices are in existence for many years. Information and
communication technology (ICT) has changed the way medicines and
medical devices were sold in old times. Even medical devices have
assumed a totally different identity with the introduction of smart
technology and artificial intelligence. Now smart gadgets have
connected individuals with hospitals, clinics and family doctors in a
24 x 7 x 365 mode. Health related data and information is available
in real time to both doctors and the patients that has significantly
improved the health of patients as remedial measures can be taken
well in advance based on the data provided by smart e-health gadgets.

Indian government is in
the process of removing redundant and outdated laws and enacting new
one as per contemporary requirements. Healthcare industry is also on
the priority list of Indian government for legislative business. For
instance, the Central Drugs Standards Control Organisation (CDSCO) is
working towards drafting a new Drugs and Cosmetics Act, 2016 and a
Medical Devices Act, 2016. The move follows after the ministry of
health and family welfare initiated steps to revisit the D&C Act
1940 and Rules 1945. The objective of this step is to enact
contemporary laws that can ensure safety, efficacy and quality of
drugs and medical devices.

The director (Admin) of
Central Drugs Standards Control Organisation (CDSCO) has on June 6,
2016 asked
all state drugs controllers to give feedback based on their
experience within 15 days from the said notice. There have been
several transformations like new brands, biologicals and biotech
drugs besides the fixed dose combinations that need a set of
dedicated rules. These rules are also relevant keeping in mind the
regulatory requirements of different countries where Indian medicines
and medical and healthcare products are exported.

For instance, recently
the United States Food and Drug Administration (U.S. FDA) issued an
Import
Alert 66-40 (pdf) titled Detention Without Physical
Examination Of Drugs From Firms Which Have Not Met Drug GMPs. This
alert deals with detention
without physical examination of drugs from firms which
have not met drug good manufacturing practices (GMPs). Many Indian
pharmaceutical companies have been listed
on this alert and import from them has been banned. In fact, Lupin
has recalled
9,210 bottles of Suprax drugs for failure to pass purity test.

Border enforcement of
intellectual property rights (IPRs) by countries including European
Union has also posed problem for Indian pharmaceutical and
healthcare companies. EU and India even decided
to sign a letter of understanding to protect off patent generic drug
consignments. Further, due to policy decisions of United States,
Novartis
AG’s heart drug Diovan was also kept out of patients
reach. This is despite the fact that Indian patent law is in
conformity
with WTO and international obligations. Expiring medicine Patents can
boost
pharmaceutical business and e-commerce as the generic pharmaceutical
companies can provide affordable drugs in large quantity.

The Drugs
and Cosmetics Act & Rules 2016 will try to ensure compliance with
some of these issues by the Indian pharma industry. There is also the
introduction of Central Licensing Authority (CLA) along with State
Licensing Authority (SLA) and Central Licensing Approval Authority
(CLAA) for Schedule III drugs in the last year's Amendment Bill. The
new regulations may also cover the Uniform Code for Pharma Marketing,
Formation of Task Force to formulate bulk drug policy, medical
devices policy, creation of price monitoring and resource units in
the state drugs control department.

Tuesday, May 24, 2016

Recognition
of foreign divorce decree in India
is a complicated conflict of law principle. This is because the
marriage is solemnised in one country and the divorce
is obtained from another country. In the Indian context, a marriage
is solemnised in India and a divorce decree is obtained from a
foreign jurisdiction, especially United States or United Kingdom. The
reason for this dual proceedings is because in India marriage is
considered to be a sacrament and divorce is not easily obtainable. Of
course, where mutual consent is involved, there is little trouble in
dissolution of a marriage in India.

However, where the fault
theory is invoked or where one party is interested in divorce whereas
the other is not, it takes years for the party seeking divorce to get
the same. Some individuals have devised a mechanism of forum shopping
and they seek divorce from jurisdictions where it can be obtained
easily.

The Supreme Court of
India has given a constructive interpretation to the existing laws
and provisions of India to decide when such a foreign divorce decree
can be held to be valid and legal in India. This is so because the
matrimonial laws are not common everywhere in the world and they
differ from country to country. The problem arises when the parties
have their domicile
in one country and one of them obtains matrimonial relief in a
foreign country. A large number of foreign decrees in matrimonial
matters are becoming the order of the day. Similarly, illegal
domicile certificates are also very common these days to
get benefits of conflict of laws in areas like inheritance, taxation
and divorce.

India’s social, moral
and religious conditions, along with the “public policy”, will be
decisive for determining the matrimonial law, including
jurisdictional aspects, applicable in India and the harmonisation of
law cannot be achieved at the cost of their ignorance and sacrifice.
The courts can refuse to apply a rule of foreign law or recognise a
foreign judgment or a foreign arbitral award if it is found that the
same is contrary to the public policy of the country in which it is
sought to be invoked or enforced.

Under Section 13 of the
the Code of Civil Procedure, 1908 (Code), a foreign judgment is not
conclusive as to any matter thereby “directly adjudicated upon”
“between the parties” if:

(a) it has not been
pronounced by a Court of competent jurisdiction; or

(b) it has not been given
on the merits of the case; or

(c) it is founded on an
incorrect view of international law or a refusal to recognize the law
of India in cases in which such law is applicable; or

(d) the proceedings are
opposed to natural justice, or

(e) it is obtained by
fraud, or

(f) it sustains a claim
founded on a breach of any law in force in India.

It is thus clear that in
order to make a foreign judgment conclusive in India; it must be
shown that it complies with all the abovementioned six conditions. If
there is no compliance of any one of these conditions, the foreign
judgment will not be conclusive and consequently not legally
effective and binding. A decree of a foreign Court is normally
recognised by a Court in another jurisdiction as a matter of comity
and public policy. But no country is bound to recognise and give
effect to a decree of a foreign Court if it is repugnant to its own
laws and public policy. So far as India is concerned, a judgment of a
foreign Court creates estoppel or res judicata between the same
parties provided such judgment is not subject to attack under any of
the Clauses (a) to (f) of section 13 of the Code.

Ultimately, it is a
question of fact that decides whether a foreign divorce decree can be
enforced in India or not. Further, advent of information and
communication technology (ICT) has added further complications for
recognition of foreign divorce decrees in India. Thus, only trained
legal professionals who are well versed in marriage and divorce,
conflict of laws principles and techno legal issues can best help in
this regard.

If you are interested in
our techno legal expertise regarding solving your conflict of laws
issues, please establish a client
attorney relationship so that we can assist you in your
matters.

Some of the salient
features of the Nagaland
Gaming Act, 2016 are as follows:

(1) The Act allows games of skills and prohibits games involving
gambling elements.

(2) Some games have been specifically included in games of skill and
this would reduce the confusion about the nature of gambling
activities. However, inherent conflicts and inconsistency is there in
the provisions of the Act and this would create problems for the
gaming stakeholders in future.

(3)
Severe fines have been prescribed by the Act for gambling activities.
For instance, a fine of Rs 20 lakhs will be applicable
in the first instance, followed by an imprisonment of 6 months if not
remedied further.

(4) Games which have been
declared by courts (Indian or International) as games of skill may be
included in this list in future. The Finance Commissioner or any
Licensing Authority will be permitted to add to this list the games
of skill as long as it is in consonance with the definition of ‘Games
of Skill’ under the Act.

(5) The Act applies to
any territory in India in which “games of skill” are permitted
and are recognised as being exempt from the ambit of “gambling”.

(6) Indian place of
business and Indian connections are essential for getting a licence
from the Nagaland government. An interest in any online or offline
gambling activities in India or abroad would bar an individual or
entity from getting the licence.

(7) The State Government,
may, by notification, designate an authority or body to monitor and
regulate the activities of all licensees to ensure compliance with
the provisions of this Act, and to settle all disputes arising from
the activities conducted under this Act

(8) If the licensee
operates in a state where the state government believes the company
is violating the provisions of the act or its rules, or in violation
of local laws, it may inform the licensing authority of Nagaland. The
licensing authority shall then try and get the issues resolved.

P4LO welcomes this
legislation from Nagaland government. However, there are certain
techno legal issues that have skipped the attention of government of
Nagaland. It would be prudent to cover those issues before the rules
are notified by the Nagaland government.

Just like any other
online games, entrepreneurs engaged in fantasy sports in India are
also required to comply with certain techno legal requirements. There
is a need to change the mindset of online games entrepreneurs who are
still not serious about legal issues in India. Even if some are
interested in complying with the legal requirements of online gaming
they are ill advised and do not comply with Indian laws properly.

The problem stems from
the fact that there is no clear regulatory framework that can be
looked upon to decide legality or illegality of online poker, online
rummy, online card games, fantasy sports, etc in India. On the other
hand, regulatory compliances are scattered among different laws of
India and combining them together at a single place is a big
challenge. Unfortunately, online gaming and fantasy sports websites
in India are not complying with these techno legal requirements and
they are on the wrong side of Indian laws.

As on date, online
gaming, online gambling, fantasy sports and online lotteries websites
are not complying with the internet
intermediary compliances and cyber
law due diligence (pdf) requirements prescribed under the
Information Technology Act 2000. Similarly, almost all of the online
poker
websites in India are violating one or other laws of
India. Although online
gaming market in India is booming yet regulatory
compliances cannot be ignored. It seems online gaming and online
gambling industry of India is not considering regulations while
conducting their businesses in India.

Perry4Law conducted a
techno legal audit of various fantasy sports websites operating in
India and we found the same problems with them as have been
discussed above. Almost all of these fantasy sports websites have
used a single cut-copy-paste criteria when it comes to techno legal
compliances and drafting of legal documents of the websites. Clearly,
these online fantasy sports websites are violating the laws of India
and they may be prosecuted very soon. Those using mobile applications
can also be prosecuted
if they fail
to comply with techno legal regulatory norms of India.

Even the banks,
payment
gateways and online
payment merchants, mobile
payment vendors, etc supporting these online poker, online
rummy, online card games and fantasy sports websites can be held
liable for not following cyber law due diligence norms as they have
blindly approved online payment option to these illegal and law
breaking websites. These banks and payment gateways can also be held
liable for money laundering, FEMA violations and assisting in tax
evasion. If such banks, payment
gateways and online payment merchants have already approved
such illegal and law breaking online poker, online rummy, online
games and fantasy sports websites in India, it is in their own
interest to cancel such approval immediately. The banks etc must ask
them to first comply with applicable techno legal compliances and
then support their claims with a proper techno legal consultancy from
a reputed law firm.

If you need a techno
legal compliance and legal consultancy from Perry4Law for your online
games or fantasy sports, please establish a client
attorney relationship so that we can start working upon
your project. Perry4Law wishes all the best to all gaming
stakeholders and entrepreneurs.

Thursday, May 19, 2016

Healthcare
laws and regulatory compliances are long overdue in India.
For instance, telemedicine and online pharmacies related regulatory
issues are ignored
by the e-health and m-healthy entrepreneurs in India. Websites
selling medicines
online are openly flouting the laws of India. Mobile
application developers in India are also required to
comply with privacy, data protection and cyber law requirements.
These regulatory compliances are not adhered to by healthcare
industry and entrepreneurs of India.

Similarly, healthcare
cyber security issues in India are still not priority area
for businesses and entrepreneurs. Healthcare industry is facing
diverse range of cyber
attacks these days. The prominent among them is ransomware
that encrypts the sensitive healthcare information and decrypts the
same only once the ransom is paid. So much is the nuisance these days
that the National Institute of Standards and Technology (NIST) has
released a guide for IT developers on integrating security measures
into the development process, which could influence healthcare cyber
security management.

Recently the cabinet
approved the draft
national IPR policy of India. This would facilitate
intellectual property creation in favour of e-health and m-health
entrepreneurs in India. This would also ensure that IPRs of others
are not violated by the e-health and m-health entrepreneurs of India

Indian government has
started ambitious initiatives like Digital
India and Internet
of Things (pdf) that intend to bridge the digital divide
in India on the one hand and enabling e-delivery
of services in India on the other. There are many segments
of Digital India projects and e-health is one of them. E-health
initiatives of India government aim at providing timely, effective
and economical healthcare services to Indian population. E-health is
particularly relevant for masses that have little access to
healthcare services in India.

While the objectives of
Digital India are laudable and deserve full support yet we at
Perry4Law
Organisation (P4LO) also believe that the shortcomings
of Digital India project of India cannot be ignored or
bypassed by Indian government. Similarly insisting upon Aadhaar
number for healthcare services in India would be a terrible idea
especially when Aadhaar is not
mandatory for government services in India.

A proposal to constitute
an e-health authority of India was mooted
in June 2014. Now the Ministry of Health and Family Welfare has
released a concept note discussing establishment of the National
eHealth Authority (NeHA) for India. According to the
note, NeHA will be the nodal authority that will be responsible for
development of an Integrated Health Information System (including
Telemedicine and mHealth) in India, while collaborating with all the
stakeholders, viz., healthcare providers, consumers, healthcare
technology industries, and policymakers. It will also be responsible
for enforcing the laws and regulations relating to the privacy and
security of the patients health information and records.

As per the concept note,
NeHA would be responsible:

(a) To guide the adoption
of e-Health solutions at various levels and areas in the country in a
manner that meaningful aggregation of health and governance data and
storage/exchange of electronic health records happens at various
levels in a cost-effective manner,

(b) To facilitate
integration of multiple health IT systems through health information
exchanges,

(c) To oversee orderly
evolution of state-wide and nationwide Electronic Health Record
Store/Exchange System that ensures that security, confidentiality and
privacy of patient data is maintained and continuity of care is
ensured.

In the light of the
above, NeHA has been envisaged to support:

(a) Formulation of
policies, strategies and implementation plan blueprint (National
eHealth Policy / Strategy) for coordinated eHealth adoption in the
country by all players; regulation and accelerated adoption of
e-health in the country by public and private care providers and
other players in the ecosystem; to establish a network of different
institutions to promote eHealth and Tele-medicine/remote
healthcare/virtual healthcare and such other measures;

(b) Formulation and
management of all health informatics standards for India; Laying down
data management, privacy & security policies, standards and
guidelines in accordance with statutory provisions; and

(c) To promote setting up
of state health records repositories and health information exchanges
(HIEs);

(d) To deal with privacy
and confidentiality aspects of Electronic Health Records (EHR).

Functions of National
eHealth Authority

(1) Core Functions

(a) Policy and Promotion

(i) Working out vision,
strategy and adoption plans, with timeframes, priorities and road-map
in respect of eHealth adoption by all stakeholders, both Public and
Private providers, formulate policies for eHealth adoption that are
best suited to Indian context and enable accelerated health outcomes
in terms of access, affordability, quality and reduction in disease
mortality & morbidity

(ii) To engage with
stakeholders through various means so that eHealth plans are adopted
and other policy, regulatory and legal provisions are implemented by
both the public and private sector stakeholders.

(iii) It shall provide
thought leadership, in the areas of eHealth and mHealth.

(b) Standards Development

(i) Government of India,
MoHFW has published EMR/EHR standards for India in 2013. Similarly,
MoHFW has become a member of IHTSDO with a view of widespread
adoption of SNOMED-CT in India; MoHFW has also nominated C-DAC (Pune)
as interim NRC (iNRC). As such, initial focus of NeHA would be on
addressing implementation issues and promoting mechanisms in support
of the same.

(ii) Concurrently, NeHA
will be nurtured to undertake the role of a standards development,
maintenance and support agency in the area of Health Informatics

(c) Legal Aspects
including Regulation

(i) NeHA will be setup
through an appropriate legislation (Act of Parliament). It is also
proposed to address the issues relating to privacy and
confidentiality of Patients’ EHR in the legislation. NeHA may act
as an enforcement agency with suitable mandate and powers.

(ii) NeHA will be
responsible for enforcement of standards and ensuring security,
confidentiality and privacy of patient’s health information and
records.

NeHA, while avoiding the
implementation role by itself, will prepare documents relating to
architecture, standards, policies and guidelines for e-Health stores,
HIEs and NHIN; it may also initiate or encourage PoCs, in close
consultation with government – centre and states, industry,
implementers and users. Later, it would lay down operational
guidelines and protocols, policies for sharing and exchange of data,
audit guidelines and the like; these shall be guided by experience in
operation and use of PoC, global best practices and consultations
with stakeholders (MoHFW, State governments and other public and
private providers, academia, R&D labs, and others).

(e) Capacity Building

Spreading awareness on
Health Informatics / eHealth to healthcare delivery professionals
through various educational initiatives and flexible courses
according to the background of the learners will form a component of
NeHA activities, as it is seen as critical to acceleration of
adoption of eHealth.

(f) Other functions may
be assigned to NeHA as the situation warrants.

Health being a state
subject in India and much depends on the ability /regulatory
framework enacted by the State governments, NeHA shall be created
through legislation (Act of Parliament) that empowers it to take
leadership and strategic role for setting directions for public and
private eHealth initiatives, including electronic health records
storage and health information exchange capabilities and other
related health information technology efforts and regulation of the
same.

NeHA shall ensure ongoing
interagency cooperation – while engaging with various stakeholders
through the Standing Consultative Committee and also through other
means, in a structured, open and transparent manner to support
successful evolution of national integrated health information
system. We at P4LO welcome
this initiative of Indian government and wish all the best to it in
this regard.

Wednesday, May 18, 2016

Mobiles
have become ubiquitous
in India and they are practically being used for every aspect of our
day to day activities. Mobile gaming is just one example of use of
mobiles by Indians. However, use of mobile have given rise to very
complicated techno
legal issues that
require a techno
legal framework
to manage them. The truth is that mobiles and mobile related
activities cannot be handled by the Information Technology Act, 2000
(IT Act 2000) anymore and we need dedicated mobile
phone laws in India.
This is more so when the mobile
gaming market in India
is fast growing.

Gaming
industry of India was confined till recently to physical games only.
However, with the advent of information and communication technology
(ICT), Internet based and mobile games have fast emerged. For
instance, online rummy, online poker, online card games, etc are very
popular these days. Even online
lotteries
have become very common these days in various states of India.
However, online gaming industry of India received a major setback
when both the Central
Government
and Supreme
Court of India
refused to clarify upon the legality of online games in India.

As per the research and reports of various organisations, online
gaming and mobile gaming market of India is set for big
growth. Many foreign companies have also shown their interest in
exploring the Indian gaming market. However, only those stakeholders
would be benefited from the same who are in compliance with the
techno legal requirements of mobile gaming laws of India. Besides
techno legal issues, online gaming and mobile gaming providers would
also be required to introduce the element of “localisation” to
make their online games successful. Text translation, dialogue
dubbing and character outfits are among the most common tweaks in the
“localisation” work by firms wanting to capitalise on Asia’s
booming online gaming market. However, the term localisation is not
confined to mere commercial aspects but it covers legal issues as
well. This means that local laws are also required to be complied
with by Indian and foreign online gaming service providers.

Many global gaming
entities have also opened offices in India or have signed
distribution agreement with leading Indian mobile game developers to
distribute their products in India. While operating gaming business
is easier in some countries of the world where gaming is legalised
yet the situation is not so easy in India where the laws are
stringent. India is still struggling to deal with issues of mobile
payments and mobile
application development laws and this has further
complicated the scene.

The Constitution of India
empowers the State Legislatures to frame state specific laws on
betting and gambling under the List II, Entry No. 34 of Seventh
Schedule.The Public Gambling Act, 1867, is a central enactment
on the subject, which has been adopted by certain states of India.
The other states in India have enacted their own legislation for
regulating gaming activities within its territory. However, this was
an easier task for the states as most of these laws were made
applicable to physical games that could be easily confined to the
territories of a particular state. Internet and ICT has obliterated
this territorial limits and now online or mobile gaming activities of
a state can be made available to another state. This not only is
illegal but is also a direct violation of the legislative powers of
the states who do not allow such online or mobile games.

Many online games or
mobile games entrepreneurs believe that physical games legal concepts
and judgments can be automatically applied to online games or mobile
games. However, this is a wrong assumption and can give rise to
various forms of legal prosecutions. We at Perry4Law
Law Firm firmly believe that online games and mobile games
are totally different from physical games and it is a serious legal
fallacy to blindly apply the test of skills v. chance to online or
mobile games. The test is just one of the factors and relying solely
upon this test would surely attract legal sanctions.

Perry4Law strongly
recommends that online and mobile gaming entrepreneurs and businesses
in India must ensure techno legal compliances before launching their
respective ventures in India. Avoiding these techno legal compliances
would prove counter productive in the long run.